Citation Nr: 1637065 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-23 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for service-connected adjustment disorder prior to November 28, 2014, and entitlement to an increased disability rating in excess of 30 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service from June 1994 to July 2000, with additional time in a reserve unit. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this issue in October 2015. FINDINGS OF FACT 1. Prior to November 28, 2014, the Veteran's adjustment disorder resulted in occupational and social impairment only during periods of significant stress, or with symptoms controlled by continuous medication. 2. Beginning November 28, 2014, the Veteran's adjustment disorder resulted in no more than an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. Prior to November 28, 2014, the criteria for an increased disability rating in excess of 10 percent for an adjustment disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440 (2015). 2. Beginning November 28, 2014, the criteria for an increased disability rating in excess of 30 percent for an adjustment disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has met all statutory and regulatory notice provisions. See 38 U.S.C.A. §§ 5100, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015). The Veteran is appealing the initial rating assignment. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore additional notice under 38 U.S.C.A. § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Additionally, the Board notes that the Veteran was provided with the pertinent rating criteria in an April 2010 Statement of the Case. Therefore, no further notice as to this claim is needed. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. The Board notes that the Veteran applied for Social Security Administration disability benefits for a back disability. There is no indication that the Veteran has applied for disability benefits for any mental health disability. The Veteran was even asked at a Board hearing in August 2009 on a different issue whether his adjustment disorder affected his ability to work, and he reported that this biggest issue was chronic pain, rather than any mental health deficit. As there is no indication that the Veteran has asserted that he is unable to maintain substantial gainful employment due to mental health conditions for disability purposes, the Board finds that obtaining records from the Social Security Administration would not be necessary or relevant in this context. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board notes that a VA examination has been conducted and an opinion obtained. Together with the other evidence of record, including a November 2014 statement from a counselor, the Board has sufficient evidence to render a decision at this time. Of note, the Veteran does not regularly seek treatment for psychological symptoms. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, the Veteran's mailing address was verified, and the RO readjudicated the issue of an increased disability rating for an adjustment disorder before the case was returned to the Board. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2015); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2015); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2015). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during the periods of remission. The evaluation must be based on all the evidence that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2015). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2014). A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The Board notes that the GAF Scale has been abandoned in the updated fifth edition of the DSM (DSM-5). In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. The Veteran's service-connected adjustment disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9440, which provides: A 10 percent disability rating is warranted when the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. By way of history, the Veteran was initially granted entitlement to service connection for an adjustment disorder in February 2009, with a 10 percent disability rating as of September 20, 2007. In a November 2015 rating decision, this disability rating was raised to 30 percent as of November 28, 2014. At all times during the appeal period, the Veteran has argued that he is entitled to a higher disability rating for his service-connected adjustment disorder. Prior to November 28, 2014 The Veteran has received ongoing treatment through VA, but has not had any mental health treatment. In September 2006 he expressed interest in seeing a psychiatrist for depression symptoms. His treatment provider noted that the Veteran had taken antidepressant medication but had stopped because it had not helped his symptoms. During his pain management treatment the Veteran was noted to have a flat affect and he reported worrying about his spinal pain progressing. In October 2008 the Veteran underwent VA examination in connection with his claim, and at the time he confirmed that he had not sought mental health treatment, but that he had taken mental health medication previously but that it had interfered with his other medications. When the Veteran described his mental health symptoms, he admitted to having low energy (sleeping only 4 hours per night due to pain) and low motivation, and that he was not interested in socializing with others. He rated his depression as a four on a depression scale of zero to ten, although he asserted that on better days his depression was a zero. The Veteran also reported having difficulty with long-term memory. He also noted irritability due to pain. The VA examiner noted that the Veteran was doing internet contracting a few hours per week for work, and that he was teaching a college math course. The Veteran reported that it was harder for him to be productive at work because of pain symptoms. During the mental status examination the Veteran scored 29 out of 30, which was in the normal range. His mood was in the normal range of functioning. He was noted to have a cooperative attitude, and his thought processes and communication were normal. The VA examiner noted that the Veteran's social functioning was impaired because of irritability due to pain, but the VA examiner did not indicate any other difficulties. The Veteran was diagnosed with an adjustment disorder and was given a GAF score of 70. The VA examiner opined that the Veteran had adjustment disorder signs and symptoms that were transient or mild which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. There was no documentation of mental health treatment or management for the remainder of this period. The Veteran's wife testified at a hearing on another issue that the Veteran's pain precluded them from visiting family frequently because of the pain during travel. The Veteran reported having some difficulty being productive at work because of pain, and he had a depressed mood that was rated as a four on a scale of one to ten, all of which are consistent with mild or transient symptoms as described by a 10 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9440. As it pertains to social functioning, the record shows that the Veteran has been married to his wife for 14 years and he has two children. He has a good relationship with his family, and while he does not socialize much with others this seems to be due to his pain rather than mental health deficits. Indeed, he was able to relate well and was cooperative with the VA examiner, and the record does not reflect any incidents of conflict with others. As it pertains to occupational functioning, throughout this period the Veteran was employed consistently teaching and doing internet contracting. Again, any deficits in this area appear to be due to physical, rather than mental health limitations. The Board notes that he was able to maintain the mental capacity to teach college level mathematics. As noted, the Veteran's only GAF score was 70, indicating symptoms ranging from transient to mild in severity. However, the Board must evaluate all of the evidence of record bearing on the Veteran's social and economic impairment. See Carpenter v. Brown, 8 Vet. App. 240 (1995). The Board finds that the record does not demonstrate occupational and social impairment with occasional decrease in work efficiency; reduced reliability and productivity; deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or total occupational and social impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9440. Throughout the appeal period, the Veteran denied having any behavioral problems, violence, substance abuse, mental health hospitalizations, or suicidal or homicidal ideations. Of note, the Veteran's irritability, fatigue, and sleep problems have been linked to his pain rather than his adjustment disorder. While the Veteran has reported depression and memory problems, the VA examiner in November 2008 considered these symptoms and still determined that the overall level of impairment was best described as symptoms that were transient or mild which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress. That opinion is the most probative evidence in this case, is supportive of a 10 percent but no higher rating, and is not in significant conflict with any other evidence of record. Accordingly, a higher disability rating is not warranted for this period. 38 C.F.R. § 4.130, Diagnostic Code 9440. The Board has considered the benefit of the doubt doctrine. However, because the evidence is against a finding of functional impairment comparable to occupational and social impairment with occasional decrease in work efficiency, the assignment of a disability rating in excess of 10 percent for adjustment disorder prior to November 28, 2014, is not warranted. See 38 C.F.R. § 5107(b); Hart, 21 Vet. App. 505; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Beginning November 28, 2014 In November 2014, the Veteran's counselor submitted a written statement indicating that the Veteran's pain caused him to exhibit moderate degrees of depression, memory issues, chronic fatigue, and socially avoidant behaviors due to fatigue. The counselor noted that the Veteran would be unable to maintain gainful employment given the issues of chronic pain and subsequent symptoms, but that he had sufficient emotion management that permitted him to perform fundamental life tasks. There was no documentation of mental health treatment or complaints of mental health symptoms for the remainder of this period. The Board finds that during this time period, the Veteran's symptoms did not produce functional impairment that more nearly approximate the criteria for a rating in excess of 30 percent. Specifically, the Board notes that the Veteran had no mental health treatment, but more importantly did not express any mental health deficits or symptoms to his treatment providers other than depression and memory issues. Depression and memory issues are both specifically contemplated in the currently assigned 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9440. While the counselor noted that the Veteran has sleep impairment causing fatigue, which in turn caused socially avoidant behavior, as noted previously, the Veteran's sleep impairment has been attributed to his pain. Moreover, despite his reported symptoms of depression, the Veteran's counselor noted that the Veteran was able to perform fundamental life tasks, which suggests that he is able to do his activities of daily living. There is no indication in the written statements or testimony that the Veteran is precluded from doing daily activities due to his mental health symptoms, although he may have been somewhat limited due to his back pain. Further, while the counselor indicated that the Veteran had memory issues, the Veteran has been able to carry out daily activities, and there is no documentation suggesting that the Veteran has been limited to an extent contemplated by a higher disability rating. Although the Veteran was not working during this period, his occupational limitations appear to be due to back pain, rather than mental health difficulties. Moreover, there is nothing to suggest that the Veteran's social functioning changed significantly from the prior period. The treatment note supports the finding that the Veteran is entitled to a 30 percent disability rating, but no higher, during this time period. The Board has considered the benefit of the doubt doctrine. However, because the evidence is against a finding of functional impairment comparable to occupational and social impairment with reduced reliability and productivity the assignment of a disability rating in excess of 30 percent for adjustment disorder prior to November 28, 2014, is not warranted. See 38 C.F.R. § 5107(b); Hart, 21 Vet. App. 505; Gilbert, 1 Vet. App. 49. Other Considerations Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Services to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned for this period inadequate. The Veteran's service-connected adjustment disorder is evaluated as a psychiatric disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.130, Diagnostic Code 9411. During the period on appeal, the Veteran's adjustment disorder was primarily manifested by depressed mood and mild memory loss. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the evaluation assigned for the periods on appeal. Moreover, the symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Essentially, the General Rating Formula contemplates all symptoms causing social or occupational impairment. The Board finds that all of the Veteran's symptoms are contemplated by the Rating Schedule and as a result referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Thun, 22 Vet. App. 111. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. The Court in Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), subsequently held that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. Neither scenario applies to the instant case. Finally, the Veteran's adjustment disorder affecting his employability has not been raised as an issue during the period on appeal. In October 2012 the Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), with an effective date of March 31, 2008. The Veteran has not contested the effective date for this award, and therefore the issue is moot. Thus, the Board finds that a claim for a TDIU based on an adjustment disorder has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an increased disability rating in excess of 10 percent for service-connected adjustment disorder prior to November 28, 2014, and entitlement to an increased disability rating in excess of 30 percent thereafter is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs